The Touchstone for Modification

The recent COA decision in Vogt v. Blann, handed down September 15, 2015, includes some interesting language that you might want to take to heart next time you have a custody modification case.

Brian Blann and April Vogt were divorced from each other in 2007. They had one daughter, Adyson, and April was awarded custody of her. In 2012, Brian filed a petition for modification of custody. At trial the proof established some questionable circumstances that had arisen since the divorce:

April dated various men, lived with one, and gave birth to a child whose father she could not identify.

Adyson attended several different schools, and had absences due to moves.

When in kindergarten at one school, Adyson missed 12 days of school, nine unexcused.

At another school during the same school year, Adyson missed six days and was tardy 12 times.

At the time of trial, Adyson was in first grade, and had seven absences and four tardies. She had an “F” in reading.

Adyson had several illnesses, including strep, hand-foot-and-mouth disease, and April did not always get her suitable medical care.

Police were called to an altercation between April and her boyfriend; she was arrested, “went off” on the police, and tried to kick the window out of the squad car where she was detained.

DHS took custody of all three of April’s children (including Adyson) for six months.

Adyson had serious dental issues that April had not adequately addressed.

The chancellor found there to have been a material change and an adverse effect, and awarded Brian physical custody. The parties were to share joint legal custody, and April was given visitation rights. April appealed.

In his opinion, Justice Irving said this:

¶19. The chancellor determined that there had been a material change in circumstances that adversely affected Adyson’s well-being based on the following findings: April’s “numerous moves,” which created instability; “numerous men” in Adyson’s life; “numerous tardies and absences at the school[s,]” some of which were unexplained; and Adyson’s “suffering” grades. The chancellor also noted, with respect to the police incident, that the “reaction that the mother did [sic] at that time to that circumstance was certainly not smart.” The chancellor also pointed out that April did not know if “the children [had woken] up and look[ed] outside” and had seen their mother’s behavior.

¶20. The record is silent as to April’s living conditions at the time of the initial custody order, so we have nothing to compare. [Emphasis mine] …

Now, let’s stop right there.

It’s fundamental that modification of custody requires (a) material change in circumstances of the custodial parent’s living circumstances; (b) adverse effect on the child; and (c) a determination that it is in the child’s best interest to change custody.

Yet here, “the record is silent” as to April’s conditions at the time of the original custody determination in the divorce. Oops. That could have been a fatal mistake, but for the chancellor who was undoubtedly making findings that he felt he had to make for the best interest of Adyson.

If you find yourself in a similar case, be sure to put on proof to show what were the custodial parent’s living circumstances at the time of the initial custody determination. It may come in via adverse testimony of the respondent herself, or through your client. It may be by third parties. It could even come in through the chancellor’s original opinion and judgment at the time of the initial custody determination, which you can get into the record by a certified copy, or by asking the court to take judicial notice.

But however you do it, you have got to show that there has been a change, and to prove change you have to show what the situation was that has now changed. This is true in every type of modification. If it is child support, you have to show the parties’ financial situation, and the age of the child at the time of the initial judgment. Change is the prime mover in modification.